Tang Legal Code
The Tang dynasty created an effective government model of the state management, which left behind previous achievements in the spheres of education, economy and law. The document became a logical conclusion of the decades of legal discussions between the Confucius and Legalists’ schools and inherited the best elements of the Rites of Chou. The main value of the Code is that it made the law more public, available and understandable for common people. The paper proves that the primary aim of both the Tang code and Confucian studies is defense of the two supports of Chinese traditionalism: the family and the state, but the interpretation of it appeared in different methods of implementation.
General Issues of the Tang Code
From the prehistory of acceptance of the Tang code, it is obvious that some elements of it are still present in Korea, Vietnam and Japan. Comparing to the Western legal tradition, the Code recognizes decreased reliance on the lawyer. It comprises effective procedure for trials, emphasis on confession and Chinese legal inheritance of recognition of the social, state and family development.
Speaking about it in the context of government, it is worth mentioning that the initiator of the Code is the Tang dynasty. It actually established the set of laws, which brought “several centuries of economic prosperity and cultural vibrancy” (Totally History, 2012, p. 1). The essence of the document was in a systematic and well-known specification of allowed and forbidden actions, and further legal consequences of neglecting the law. The Tang dynasty managed three departments responsible for the legal order and policymaking. Six administrative ministries served the departments: “Personnel administration, military, finance, rites, justice, and public works” (Totally History, 2012, p. 1). Hence, the model was so effective that subsequent dynasties and neighbor countries borrowed it. Confucianism as a phenomenon developed in 722 – 481 B. C. by Confucius and his disciples of the Chintzy dynasty and spread across modern China, Korea and Japan. Confucianism became an official political and ethic norm of those countries and was approved with the purpose of establishing a new order of traditional values among common people.
The reason why it is valuable to compare Confucian studies and the Tang code is that both proclaimed same values, but in different forms. The novelty in the statements of Confucius (551 – 479 B. C.) was mainly in estimation and attainment of the status through achievement rather than by birth. However, his school followed the idea that people of all ranks and origins should not look at something that counters Li (propriety). The rules governing the privileged class cannot be applicable to the common people. Along with that, the written law is not a proper attribute – it must be based on common approval and untouched by generations. The opposite side (Legalists) proclaimed the law of equality to everybody as the one possible tool for elimination of social disruption in the life of selfish society. The written law was the only proved guide for a society to follow code principles and punishment for its break.
The Chinese unification of 221 B. C. fastened synthesis of the two sides in Ch’in and Han codes, and the Rites of Chou inherited the jurisdiction. The last document, which influenced the Tang Code the most defines eight categories of people who get privileges or immunity from severe punishment for their crime. The basic impact of the Code was to make the criminal law known to common people since the Legalists and Confucians did not succeed in it before.
Comparative Analysis of the Tang Code and Confucianism
The Tang Code (created in 624 B. C.), which still has an influence on the East Asian legal science and process, may be scientifically attractive for discussions in comparison to the Confucian moral theory. According to Karla W. Simon (2013), “The code was reworked several times, including a reduction in penalties and a commentary to aid officials in its application was added in 653” (p. 35). The Code promotes higher standards of behavior of officials and fathers (when speaking concretely about family model). Commonly to the Tang Code, Confucianism emphasizes the importance of a leader-father, who is supposed to be an example of moral behavior. Confucius recognized mutual concern between father and his children. Nevertheless, the Code proclaims the opposite benefits: a father could beat his son and it was not considered a crime. Hence, the Code’s role of father in the family hierarchy took much higher rank than in the standpoint of Confucius.
In terms of women’s ranks, the Tang code represents a strict version of Confucius’s interpretation of the family and state in general. For example, the Code allowed to sentence a wife who dared to hit her husband to one year of penal servitude. According to Kelly W. Simon (2013), “These sorts of differences placed huge burdens on people with lower ranks and made them more vulnerable to development acute needs in times of strife or natural disaster” (p. 36). Vice versa, when a husband hit his wife it was not considered a crime and thus, remained unpunished. In Confucianism, there is a submissive relationship within the family, which is a prototype of the state: wives and children are dependent on men.
Another interesting aspect of Confucianism and the Tang Code to compare is social division. The Code contains eight privileged groups that belong to different jurisdiction. They are: 1) relatives and family members of the emperor; 2) retired long-term civil servants; 3) the morally worthy; 4) qualified and talented persons: army leaders etc.; 5) persons with outstanding achievements; 6) noble and titled persons; 7) diligent persons; 8) guests of the state. Those eight positions entitled individuals to special treatment where the emperor defined whether they may be brought to trial. In case of being found guilty, they were punished according to the Code’s terms and measures. The privileged persons who held titles could pay a fine instead of receiving a sentence. An exemption was available only in case of official’s violation of one of the ten abominations defined by the Code for committing serious crimes. Confucian’s division of honors was “bestowed by Heaven (humaneness)” and “bestowed by humans (ranks in the governments)” (Yao, 2000, p. 148).
Due to the Code’s principles, the competency of a magistrate implied two processes governing the criminal case. First, general determination of the committed crime; second, sentencing the required punishment. In order to ensure impartiality and control, the Code recognized severe punishment for misjudgment of the prosecuted person. Some privileged persons could use their rights for petition, which was a basic practice in criminal process. For example, it allowed relatives of the second or third degree, and officials of the eighth and ninth ranks to get maximum three years of the penal servitude (instead of a more severe punishment).
Except life exile, the capital sentences were not reduced because the maximum term was three years of penal servitude. In addition, it was popular to practice the redemption fine as a way of punishment (for example, copper fees). The commoner status was also important as the degree of punishment depended on the origin and status of the victim. Hence, the committed crime against inferiors and slaves cost less than abuse of the commoners (limited status). However, the abuse of noble or political person did not increase the severity of punishment comparing to the crime against a commoner.
A person who gained higher authority simultaneously got increased responsibility due to the concept of reciprocity. In Confucius’studies the analogue is called the Second Dao, but the Code’s reciprocity in this context rather means measures of punishment. There is an example of Tzy Chan, who was the most respectable and outstanding political activist and diplomat of Ancient China. He followed his sense of responsibility while being at service. Nevertheless, the Code’s interpretation of responsibility is quite specific when it comes to measures and/or liability of punishments for committed crimes against inferiors.
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In addition to the concept of responsibility as a part of family values, the Code states that the status and reciprocity of the family members increase their responsibility. For example, only a person of older generation was punished/sentenced for a committed crime against another family member, and a younger member was exonerated in the same situation. When some member of the family committed a crime in the order of father or other elder member, only the latter member deserved punishment. Even if he did not participate physically in that crime – the principle of obeying to the head of the household is the first evidence that the elder is guilty. It is important to note that the same principle functioned in each sphere that managed the relationship between a leader and his assistant/inferior (monasteries, schools etc.).
The Tang Code is the first Chinese document that synthetized the legal recommendations of Confucianism and Legalists into a single guideline known among all common people. The Tang dynasty adopted the Code in 642 B. C. and since that time it became available in other East Asian countries. The Code has some general similarities with the teachings of Confucius, especially in relation to the concepts of traditional values such as family and state. Nevertheless, disregarding liability and punishment of some privileged groups along with the responsibility of elders provides a valuable discussion basis for the creation of the Code.
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